review labor

8/2/2019 Review Labor

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Labor Law

Bar 2011 Notes

Roland Glenn T. Tuazon

Ateneo de Manila University

Table of contents:

1. FUNDAMENTAL PRINCIPLES AND POLICIES2. RECRUITMENT AND PLACEMENT3. LABOR STANDARDS4. TERMINATION5. SOCIAL LEGISLATION6. SELF-ORGANIZATION7. COLLECTIVE BARGAINING8. CONCERTED ACTS9. PROCEDURE

FUNDAMENTAL PRINCIPLES AND POLICIES

What is labor law?o A regulatory devise, which regulates the relationship between

the employer and the worker the two factors of production

What is labor standards law?o Establishes the minimum terms and conditions of employmento Rationale: these are necessary for the worker and his family to

survive

o These are beyond then negotiation of the parties; they cannotagree to terms less than those provided in the law. If they do,

these are void.

What is labor relations law?o It is concerned with institutional relationships and does not look

as the laborer as an individual, but as a group of workers

(union)

o Two aspects of labor relations law: 1. Union and State relationship 2. Union as an organization and its relationship to the

members

What is social or welfare legislation?o It solves the problem of avoiding making the worker a charge

on society and solves the problem of continuity of income

either in whole or in part if and when some contingencies

occur, such as sickness, injuries, premature death, and final

death

o What are the laws covered by social legislation? 1. Employees compensation and State Insurance

Fund (ECSIF)

2. SSS Law 3. GSIS Law 4. Limited portability law

o Which are applicable to what workers? SSS, to private sector employees GSIS, to government employees and those in GOCCs Both, to those employed in both fields Limited portability provides a tacking provision for

those who have partially fulfilled GSIS and SSS

requirements

SSS and GSIS for non-work-connected injuries andECSIF for work-connected injuries

What is the basis for enacting labor law?o Constitutional provisions mandating the State to protect

laborerso Police power of the State

What are the sources of labor law?o 1. Contract law gives rise to rights and obligations

A. Civil code provisions on contracts B. Collective Bargaining Agreements

o 2. Past practices, which are: Those given voluntarily by the employer without

compulsion by law for a sufficient duration

What is sufficient period or duration?


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Case by caseo 3. Company policies

Those unilaterally designed and implemented by theemployer, stating rules and regulations of the

company. These can be the source of rights and

obligations. N.B. these are unilaterally imposed by the employer;

otherwise, it would fall under contract law.

What is a labor case?o 1. Involves employer and employeeo 2. Subject of controversy and laws of resolution fall under labor

law

Thus, if the area of resolution is civil law and not laborlaw, such as replevin, then it is not a labor dispute

What is management function?o These are rules based on the right of ownership, designed for

efficient and economical management of the enterprise. Itpermeates the entire labor code, regardless of field.

o What is the limit to management function? The law reserves the right to inquire as to the manner

of exercise of such right.

How does the law look upon waivers and compromises?o It looks upon it with disfavor, although not all waivers and

compromises are void under law.

o What are the tests of validity of waivers andcompromises?

1. Arithmetic measure is what was received forsettlement unconscionable?

2. Relative positions of the employer and employee what is the educational attainment of each? Was the

employee in dire need?

3. Freedom on the part of the worker was thereabsence of coercion?

What are the guaranteed rights of laborers under Art XIII, Sec. 3? o 1. Self-organizationo 2. Collective bargaining and negotiationso 3. Peaceful concerted activities, including right to strike

o 4. Security of tenureo 5. Humane conditions of worko 6. Living wageo 7. Participation in policy and decision-making processes

How does LC Art. 255 operationalize this? Workers can participate in policy and

decision-making processes of the

establishment where they are employed as

far as it would directly affect their rights,

benefits, and welfare

What are the other goals set by this provision?o Full protection to laboro Full employment and equality of opportunitieso Shared responsibility between ER and EEso Preferential use of voluntary dispute settlemento Two fold rights:

Right of labor to just share in fruits of production Right of enterprises to reasonable returns to

investments

What does the NCC say?o Art 1700 relations between labor and capital are not just

contractual, but impressed with public interest must yield to

common good

What factors does labor law consider as to contracts?o 1. Due process clause

Labor is considered property Due process and EPC can protect the employer too,

not just the employeeo 2. Liberty of contract and laissez faire

N.B. but the State still retains an interest on theworker as part of society no matter how reckless he

may be; thus, the State continues to interfere in

contract. Laissez faire is not totally adopted.

When does the Labor code apply?o 1. There must be an employer-employee relationshipo 2. Generally applies to all kinds of employment


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N.B. but for GOCCs created and governed by specialcharter, apply the Civil Service Law instead

o What is the rule on international organizations? Beyond the coverage of the Labor Code, but the

international agreement must contain provisions on

method of dispute settlement. N.B. if not provided, the worker can ask for withdrawal

of immunity of suit so that Philippine legal processes

can apply.

o What about school teachers? Public school teachers are covered by the Civil

Service Law.

Private school teachers are covered by the Dep. Ed.Manual

But for all matters not covered by these, the LaborCode applies. The most important is probationary

employment.o Does the Labor Code apply to religious corporations?

If the nature of the controversy is not religious, thenthe Labor Code applies.

o Does the Labor Code apply to managerial employees? Yes, although certain aspects like Hours of Work do

not apply.

RECRUITMENT AND PLACEMENT

RECRUITMENT OF LOCAL AND MIGRANT WORKERS

What is recruitment and placement?o Any act of:

Canvassing, enlisting, contracting, Transporting, utilizing, hiring, procuring workers Includes referrals, contact services, promising or

advertising employment for profit or not, here or

abroad

o When is there a presumption of R&P?

When a person or entity offers or promises for a feeemployment to two or more persons

o How do you harmonize the definition and thepresumption?

Any one act under the definition is sufficient toestablish R&P, regardless of number of persons. Thepresumption is only a rule of evidence which operates

when there are two persons to whom employment is

promised for a fee and the acts defined above cannot

clearly be established.

o Who are workers? All members of the labor force, whether employed or

unemployed

What is the State policy under MWA?o Promotion of overseas recruitment is not State policy, because

it seeks to create local opportunities. But while there are

workers deployed abroad, there must be protections for them.o Does the POEA have jurisdiction over ER-EE relations

cases for OFWs?

Not anymore. Its been retransferred to NLRC. ThePOEA only handles administrative cases.

o What is the nature of employment of seafarers? They are contractual employees

Differentiate license from authority:o License is authorization to operate a private employment

agency. A Private Employment Agency is an entity engaged in

R&P for a fee (charged from employer, worker, or both)

oAuthority is authorization to operate a private recruitmententity. A Private Recruitment Entity is an entity engaged in

R&P without charging any fee

Illegal recruitmento What is the definition of illegal recruitment under the LC?

Any recruitment activities (Art. 13) or prohibitions (Art.34) undertaken by non-licensees or non-holders of

authority

o What is the definition of illegal recruitment under the MWA(RA 8042)?


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Any recruitment activities (Art. 13) undertaken by non-licensees or non-holders of authority

Any prohibited acts (Art. 34), whether licensed or non-licensed

o What are the prohibited acts (Art. 34)? 1. Overcharging (whether vis--vis schedule of fees or

what has been loaned/advanced)

2. Public false information re: recruitment 3. Misrepresentation to secure license or authority 4. Induce or attempt to induce employed worker to

leave job to offer him to another

Except to save him from oppressiveemployment

5. Influence employer not to hire worker unlesscoursed through his agency

6. Engage in R&P for harmful or anti-public policywork

7. Obstruct or attempt to obstruct inspection by Sec ofLabor or representatives

8. Fail to file reports required by Sec of Labor 9. Substitution or alteration of approved contracts

without approval of Sec of Labor

10. Becoming officer or being involved inmanagement of travel agency

11. Withhold or deny travel documents from workersbefore departure due to financial considerations

Unless authorized by LCo

What are the additional grounds added by MWA, apartfrom these?

12. Failure to deploy the worker without valid reason 13. Failure to reimburse worker when deployment

does not happen without his fault

Differentiate simple illegal recruitment, illegal recruitment in largescale, illegal recruitment as syndicate:

o Large scale if committed against 3 or more personsindividually or as a group

o By a syndicate carried out by a group of 3 or more personsconspiring or confederating with each other

o What are these two types of illegal recruitment called? Illegal recruitment as economic sabotage

Can illegal recruitment and estafa coincide?o If there are pecuniary damages due to previous or

simultaneous false pretense resorted to by the entity, then the

latter can be sued for estafa under Art. 315

o This suit may prosper aside from illegal recruitment What are the liabilities of the local employment agency and the

employer?

o The agency is solidarily liable for the unpaid salaries of theworker, along with the principal/employer. This holds true even

if the agency agreement has been severed, if no notice was

given to the employee.

o What is the theory of imputed knowledge? The presumption that knowledge of he agent can be

ascribed to the principal as well.

o When is an employee of the entity liable as a principal? When he had knowledge of the offense and had

active and conscious participation. NOT liable as

principal when merely carrying out orders of superior.

What is the rule on pre-termination of contract of a MW?o If there was pre-termination without just cause, the employer

will be ordered to pay the workers:

o 1. Full placement fee with 12% interest ANDo 2. Salary for unexpired portion of the contract OR for 3 months

for every year of the unexpired term, whichever is lessero Isnt this unconstitutional?

Yes, according to Serrano v. Gallant, but R.A. 10022passed 1 year after reinstated the provision

Is direct hiring allowed for overseas employment?o As a general rule, no, direct hiring is not allowed. It must be

through boards and authorized entities.

o What are the exceptions? 1. Diplomatic corps 2. IOs


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3. Other employers allowed by the DOLE What is the rule on employment of Non-Resident Aliens?

o Either the alien or the employer must obtain an employmentpermit from the DOLE

o When is the permit issued? Upon determination of non-availability or a person in

the Philippines who is competent, able, and willing at

the time of application to perform the services for

which the alien is desired

o What is the special rule for those preferred areas ofinvestment?

Permit issued upon recommendation of thegovernment agency in charge of that enterprise

Upon issuance of the employment permit to the NRA, what are theregulations?

o Cannot transfer employment without prior approval from DOLESecretary

o Else, punished under the LC and/or deportedREGULATION AND ENFORCEMENT

What is the rule on remittance of foreign exchange earnings?o Employment contracts must contain a proviso that makes

remittance of the following rates mandatory

1. Seamen 70% of basic salary 2. Workers of Filipino contractors or construction firms

70%

3. Doctors, nurses, engineers, teachers, otherprofessionals whose contract gives free board and

lodging 70%

4. Professionals without free board and lodging 50% 5. Domestic and service workers 50% 6. All others 50%

What are regulations?o 1. Travel agents and sales agencies of airline companies

cannot engage in R&P for overseas employment, w/n for profit

o 2. Citizenship requirement for recruitment entities: Filipino

OR 75% Filipino ownership (authorized and votingstock)

o 3. Minimum capitalization as required by Sec. of Laboro 4. Non-transferability of authority or license

Cannot transfer to another person or use in anotherplace

What if you want to transfer offices? Get prior approval of Sec. of Labor, as with

appointing an agent or getting additional

offices

What are the prohibited activities?o See above enumeration (Art. 34)

What is the nature of the regulatory and visitorial powers of theLabor Secretary?

o The Secretary can restrict and regulate R&P activities of allagencies covered

o Can issue orders and R&Rso Visitorial Powers Sec of Labor or representatives may

inspect premises, inspect books/records of entities, require

submission of reports, etc.

What must be given by those applying for license or authority? o 1. Prescribed registration feeso 2. Cash/surety bonds to guarantee compliance with provisions

What is the nature of the license?o It is beyond the commerce of man, and subject to prior

approval

What are the penalties for illegal recruitment?o

1. Simple illegal recruitment 12 y 1 d to 20 y imprisonment And fine of P1M to 2M

o 2. Economic sabotage life imprisonment And fine of P2M to 5M Maximum if the one recruited is less than 18 years, or

committed by a non-licensee or holder of

authorization

o 3. Prohibited acts 6 y 1 d to 12 y And fine of P500K to P1M If alien, deported without further proceedings


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o 4. In all cases: Revoke license or authorization

LABOR STANDARDS

Where do benefits come from?o 1. Law (Labor standards law)o 2. Contact (ex. CBA)o 3. Vested benefits

HOURS OF WORK

What is the rationale for the hours of work provisions?o 1. To safeguard health and welfare of the laborero 2. Prevent unemployment (companies that operate more than

8 hours have to hire more workers or pay more)o 3. The employee usually just accepts what the employer says,

so this will prevent begrudging acceptance of long work days

Who are covered by the provisions on hours of work?o By default, employees in all establishments and undertakings,

whether for profit or not

Who are excluded by the provisions?o 1. Government employees

Covered by Civil Service Law Exception?

Employees of GOCCs incorporated underthe Corporation Code

N.B. even GSIS-covered employees are not excludedfrom the employees compensation program under the

Labor Code

o 2. Managerial employees What are managerial employees?

1. Primary duty is management of theestablishment, department, or subdivision

2. Customarily or regularly directs work oftwo or more employees

3. Has authority to hire/fire employees oflower rank, or at least their suggestions are

given particular weight

N.B. this is not the same definition formanager in labor relations. This is broader

in scope and covers even supervisoryemployees, while the labor relations

definition does not.

Ratio: they are not hired for quantity of hours of workput in but the special training, knowledge, or

experience that requires discretion and independent

judgment

o 3. Field personnel Who are these?

Non-agricultural employees regularlyperforming their duties away from the

principal place of business What is essential?

Actual hours of work cannot be determinedwith reasonable certainty

Test: whether the employee is supervised onthe field

What about bus conductors and drivers? NOT field personnel because inspectors

check their hours of work.

o 4. Members of the family of the employer who are dependenton him for support

o5. Domestic helpers

o 6. Persons in the personal service of anothero 7. Workers paid by results

Is this determinative of employer-employeerelationship?

No. Always follow the four-fold test. This isjust a method to compute compensation.

Ratio: they are paid based on work output, regardlessof time employed

What are the normal hours of work?


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o Not exceeding 8 hours a day Can normal hours of work be less than 8?

Yes. It says not exceeding Can an employer and employee contractually

agree that work must be 12 hours a day, or any

number above 8? Yes, its a contractual commitment but the

extra 4 hours are covered by OT pay.

What is the day here? Work day (24 hour period starting from the

time an employee regularly starts to work)

NOT calendar dayo What are the exceptions?

1. Health workers In cities and municipalities with population at

least 1 million

Or in hospitals/clinics with bed capacity atleast 100 What are their hours?

o 8 hours a day, 5 days a week (N.B., its doesnt say not

exceeding this time, so

they really must work 8

hours)

Excluding meal timeso Except when exigencies require

work for 6 days (48 hours)

What is the implication on their salary?o 130% of normal salary on the sixth

day

2. Compressed Work Week What is this?

o When the employer and employeeagree that the employee works one

day less (ex. from 6 to 5 days) and

the hours of the skipped day will be

added to the other days

What is the maximum time allowed forCWW?

o 12 hours. Anything in excess willgarner OT pay

Otherwise, what is the general?o The work beyond 8 hours but under

12 is not given OT pay

What are covered by the counting on hours worked? o 1. All time where an employee is required to be on duty or to

be at a prescribed workplace

o 2. All time when the employee is suffered or permitted to worko 3. Rest periods of short duration during work hours

Does the employee actually need to leave thepremises of the workplace?

No. He can stay or go.o What about waiting time?

Check the circumstances of the job, if waiting is anintegral part of his worko X has to drive to a place outside Metro Manila to do an

installation job. Is this part of hours of work?

Yes, it is when the travel time cuts across or coincideswith regular work hours.

o X is a delivery truck driver. Is time spent driving thevehicle to and fro the bodega time worked?

Yes. How does the law treat work interruption due to brownouts?

o It is considered working time, because the time during whichan employee is inactive by reasons beyond his control is

considered working time if

Resumption of work is imminent and it requires hispresence at the place of work

Or the interval is too brief to be utilized effectively andgainfully in the employees interest

Meal period:

At least 60 minutes Default meal period

Less than 60 minutes but at least Valid shortened meal time; becomes


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20 minutes compensable

Less than 20 minutes Compensable rest period. NOT a

valid meal period.

Less than 20 minutes, but valid

compensable meal period:1. Non-manual work; does not

involve strenuous physicalexertion

2. Establishment regularlyoperates at least 16 hours a day

3. Actual or impendingemergencies or urgent work on

machineries to avoid seriousloss

4. Necessary to avoid serious lossof perishable goods

Other types of time spent at work:

Type of work Counted as working time?Idle time Yes, if the employee was engaged to

wait or he waited to be engaged.

The controlling factor: whether thewaiting time was for the employers

benefit or the employees benefit

Waiting time Yes, if waiting is integral part of thework, or if the ER engaged him to

wait.

On call working Yes. It is when an EE is required to

remain on call that he cannotgainfully and effectively use his time

for his own purposes.Travel from home to work No.

Except, when:1. EE made to work on

emergency call and travel isnecessary to get to work

2. Travel through conveyanceprovided by ER

3. Travel under supervisionand control of ER

4. Travel under vexing anddangerous circumstances

X was a company driver and wasengaged to pick up and drop off

other employees to and fro work.

Is this working time?Yes, because it is done for theemployers benefit

Travel incidental in days work Yes, if part of EEs regular activity

Travel away from home Yes, if it keeps an EE away fromhome overnight and it cuts across an

EEs workday. It substitutes fornormal working time.

Semestral break, for teachers Yes. It is an interruption beyondtheir control. N.B. this only applies

to regular full-time teachers

Attendance in lectures, meetings,

trainings, or programs

Yes.

Except if the ff requisites concur:1. Attendance is outside

regular working hours2. Attendance is voluntary3. There is no productive work

done during attendance

Nightshift differential

What is the nightshift differential?o 10% of regular wage, for each hour of work between 10 pm

and 6 am

Who are not covered by nightshift differential?o 1. In government or GOCCso 2. Managerial employeeso 3. Field personnel or other employees whose time/performance

is unsupervised

o 4. Domestic helperso 5. Those in personal serviceo 6. Working on contract basis, purely commission basis, or paid

fixed amount irrespective of time worked


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o 7. In retail or service establishments regularly hiring only up tofive workers

o N.B. So this is just like the hours of work enumeration, butincluding retail and service establishments hiring only up to 5

workers.

o Reason? Its onerous for the small business to pay NSD, but in

also, it will be harsh if they dont have to comply with

hours of work just because they have few employees.

What is the rationale for the NSD?o 1. Social disarrangemento 2. Lower efficiency and outputo 3. Higher risk going to and fro work in darknesss

What if it is also overtime work?o The 10% is calculated against OT pay as base

Overtime Work

What is OT work?o Work performed beyond 8 hours a day

What is the rate for each hour of work done beyond 8 hours?o Regular wage + 25%

N.B. Base excludes fringe benefits/bonuses justregular pay

o What if the OT work was done during a holiday? The +25% becomes +30%

o What if the OT work was done during a rest day? The +25% becomes +30%

What are conditions to be entitled to OT pay?o 1. Actual rendition of OT worko 2. Submission of sufficient proof that work was actually

performed

o 3. With knowledge and consent of employer Is it legal for the employment contract that the monthly salary

would be treated as covering even pay for rest days and holidays?

o Yes, as long as the wage is still equal to or above the minimumwage

What is the anti-offset rule?

o Under-time work on one day cannot be offset by overtime workon another day

o Neither does permission given to the employee to go on leavesome other day of the week exempt the employer from paying

additional compensation

Can OT pay be waived?o No.o Unless the waiver was in consideration of other benefits or

salary that equals or exceeds the OT pay.

What are the emergency situations when OT work can be mademandatory by the ER?

o 1. RP is at war, or national/local emergency declared byCongress or President

o 2. Necessary to prevent loss of life/property or imminentdanger due to disaster or calamity

o 3. Urgent work on machines, installations, equipment to avoidserious loss or damage to the employer

o 4. Necessary to prevent loss or damage to perishable goodso 5. Completion or continuation of work started before the 8th

hour must be completed to avoid serious obstruction or

prejudice to the business

o 6. Necessary to avail of favorable weather or environmentalconditions

o When OT is required under these 6 circumstances, mustthere be extra compensation nonetheless?

Yes. It just becomes mandatory, rather than optional. What prevails, CBA provision or OT work rate?

o CBA may stipulate higher OT pay rate. The court cannotimpose upon the parties anything beyond what they agreed

upon. If there is none, impose regular OT rate.

WAGES

What is the no work no pay principle?o If there is no work performed by the employee, there can be no

wage or pay.

o Exceptions to no work no pay:


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1. The laborer was willing, able, and ready to work butwas prevented by management

2. Illegally locked out, suspended, or dismissed.o What if the failure to work was the employees fault?

He doesnt get paido What is the principle established under ISA v.

Quisumbing?

Equal work for equal pay; no distinction can be madebased on nationality

Facilities and supplements:

Facilities Supplements

Included in wages Not included in wages

Can be credited as wages ordeducted from wages

Over and above wages

Articles or services like

board/lodging which benefit the EEand his family

Requisites:

1. Customarily furnished intrade

2. EE voluntarily accepted it inwriting

3. Charged at reasonablevalue

Extra remuneration or special

privileges received over and abovethe EEs ordinary wages

N.B. For facilities and supplements,

the nature of the benefit or item isnot a controlling criterion. It is the

purpose that controls. Check if itsmeant to be part of his wages or

over and above them.

Generally for the benefit of the

employee. So its usually at theinitiative of the EE.

Usually on the initiative of the ER.

Tools of trade or other articles for the

benefit of the ER or the business Who are excluded from the rules on wages?

o 1. Farm tenancy/leaseholdo 2. Cottage industries and other small businesses that probably

cannot afford to pay the wage rates set by law.

N.B. Consult wage orders established by regionalwage boards

o 3. Domestic serviceo 4. Barangay Micro Business Enterprises (BMBE) under R.A.

9178

Business entities engaged in producing or processingof products (including agro-processing), whose total

assets do not exceed 3M pesos

What does the term assets cover? Includes loans Excludes land where the office, plant, or

equipment are situated

Differentiate wages and salaries:o Wages

Manual labor, skilled or unskilled Paid at stated times Measured by day, week, month, or season Usually for lower and less responsible character of

employment

o Salaries Higher degree of employment, superior grade of

services, and implies position/office Larger and more permanent/fixed compensation

What is the non-diminution rule?o The benefits being given to employees cannot be taken back

or reduced unilaterally by the employer, because the benefit

has become part of the employment contract (whether written

or unwritten)

o When does a benefit set-in and cannot be diminished? 1. When the benefit is based on express policy or has

ripened into practice for a long period of time

2. AND that it is consistent and deliberateo What can be diminished?

1. Conditional or contingent benefits (ex. bonuses) 2. Those granted due to error or doubtful application

or law

What is the exception to this?o When the error has stood so long

and has been left uncorrected that it

has ripened into company policy

What is the rule on those paid by results?o If paid according to piece rates in DOLE Pierce Rate Orders:


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Wages = number of pieces * Piece Rate No overtime pay

o If paid according to output rates prescribed by the employerand not yet approved by DOLE:

If number of pieces * Rate is >= to legal daily wage,they receive the former

If formula is < than the legal daily wage, they receivethe latter

What are piece-rate employees entitled to?o 1. Applicable minimum daily rateo 2. SILo 3. Night shift differential

Huh? I thought those paid by results are excludedby NSD?

Yes but that covers those paid bycommission, contract basis, or by end-result.

That doesnt include piece-rate workers whoare just like normal workers in every respect

except they are paid by pieces made.

o 4. Holiday pay How calculated?

Not less than his average daily earnings forthe last seven actual working days

It must not be less than the minimum wageo 5. Meal and rest periodso 6. OT pay

Conditionalo 7. Premium pay

Conditionalo 8. 13th month payo 9. Other benefits granted by law or by agreemento N.B. So the rule is that piece-work EEs are entitled to the

normal benefits because the difference between them and the

usual employees is just manner of paymentand nothing else

What are the legal forms of payment?o Must be legal tendero Cannot be in PNs, vouchers, coupons, tokens, tickets, etc.

o What if the employee requested for PNs, vouchers, etc? Even so. It s not allowed.

o When is payment by check allowed? 1. Customary manner of wage payment in that place 2. Stipulated in CBA 3. Or where all of the following requisites are met:

A. Bank or encashment facility within 1 kmradius from workplace

B. the ER or his agents do not receivepecuniary benefit from the arrangement

C. EEs given reasonable time during bankinghours to withdraw wages from bank

o This is compensable working time D. Written consent of employee if there is no

CBA provision

4. Special circumstances provided in labor regulationso

Is payment by ATM allowed? Yes, under 25 Nov 1996 labor advisory Requisites for payment through ATM:

1. Written permission of majority of EEs 2. 25 or more EEs in the establishment 3. Establishment is within 1 km from bank

What is the time of payment?o At least once every 2 weeks or twice a month at intervals not

exceeding 16 days

o What if there is force majeure preventing payment? Payment made as soon as force majeure disappears

o In all cases, what is prohibited? Payment with less frequency than once a month

o What is the rule for employees made to perform taskswhich cannot be completed in 2 weeks?

1. Payments at intervals not exceeding 16 days, inproportion to amount of work completed

2. Pay balance upon completion of worko What is required by the IRRs?

1. Individual time record of employees 2. Payroll


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Where and how must wages be paid?o At or near the place of undertaking

N.B. Remember the ATM exceptiono When can there be payment in any other place?

1. Impossible to pay in place of work due toemergency or calamity

2. ER provides free transportation back and forth 3. Analogous circumstances N.B. For all: time spent is compensable work time

o What are prohibited places of payment? Bar, night/day club, drinking place, massage clinic,

similar places

Except if the people are employed thereo Who must receive the payment?

The worker himselfo Exceptions to this rule?

1. Force majeure can be paid to another person withwritten authority given by EE

2. Decease of EE Can pay wages to heirs directly without need

of intestate proceedings

What is the procedure?o The heirs submit an affidavit stating

relationship to deceased

o ER pays through Sec. of Labor orhis representatives

o Sec. of Labor acts as referee todivide the amount

3. Workers family member authorized in writing What is the rule on workers preference under Art. 110?

o In case of bankruptcy or judicial liquidation, the workers unpaidwages are preferred.

o It is not a lien, but a reordering of credits (see Concurrence andPreference of Credits in Civil Law)

What is the rule on attorneys fees?o In case of unlawful withholding of wages culpable party may

be assessed attorneys fees equal to 10% of wages recovered

o In any proceeding, cannot recover attorneys fees exceeding10% of the wages recovered

What is non-interference in disposal of wages?o No employer can limit or interfere with the employees disposal

of his wages.

o Can an employer compel his employees to purchase anymerchandise or commodity?

No, whether it be from himself or another person Can an employer deduct his employees wages?

o In general, no.o What are the exceptions under the Labor Code?

1. To pay for insurance premiums that employeeconsented to

2. Union dues, where right to check-off is authorizedin writing by the employee or recognized by the

employer

3. Authorization by the Sec. of Labor

o What are the exceptions under other laws? 1. Employee is indebted to the employer, and it is due

and demandable

2. Court ordered attachment of wages for debtsincurred for food, shelter, clothing, or medical

attendance only

3. Withholding tax 4. Salary deductions for coop members 5. Payment to third persons, upon written

authorization by employee

And agreement by the employer, who is notobliged to do so

6. Agency fee 7. Facilities 8. Loss or damage under Art. 114 (see below) 9. SSS, Medicare, Pag-ibig premiums

Can the employer require the employees to make deposits tocover for deductions for loss/damage to tools or equipment?

o In general, no.o What is the exception?


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When it is shown that such practice is long-established and recognized in the trade

o If allowed, when can deductions be made (requisites)? 1. Employee is responsible for the loss/damage 2. Employee given chance to show cause against

deduction 3. Amount is fair and reasonable, and not exceeding

the loss/damage

4. Deduction does not exceed 20% of employeeswages in a week

Can wages be withheld by the employer, if the employee violatedcompany rules, failed to perform tasks, or for any other reason?

o No. It can be dealt with in some way but not by withholdingwages.

o Other express prohibitions? Deduction to ensure employment

Retaliatory deductions False reporting

Which body has the power to prescribe rules and guidelines fordetermination of wages in the country?

o National Wages and Productivity Commission (NWPC)o What is the status of guidelines issued by Regional

Tripartite Wages and Productivity Boards?

These are void, if without the approval of or contraryto NWPC guidelines

o What is the status of a wage order without required publicconsultation and publication in newspapers?

Void as well Who sets the minimum wage?

o Regional Tripartite Wages and Productivity Boardso Is poor financial condition of the company an exemption

to payment of minimum wage?

No.o What does minimum wage relate to?

A days work which comprises 8 hours at most o When is a worker daily paid?

Paid only for days he actually worked

o When is a worker monthly paid? When the monthly rate covers all the days of the

month.

Calculated through the following formula: Monthly wage x 12 / 365 = daily rate

Must exceed the following formula: Minimum wage x 365 / 12

Distinguish agricultural from industrial rates:o Agricultural rates farming in all its brancheso Industrial manufacturing and processingo What determines which rate applies?

Nature of the work. It is permissible for one companyto pay agricultural rate to some, and industrial rate to

others.

What is wage distortion?o When the pay advantage of a position over another is removed

or significantly reduced due adjustment required by a wageorder

o The advantage must thereafter be restoredo Must there be full elimination of salary differences?

No. A severe contraction is enough.o Are efforts to rectify mandatory?

Yes, whether the establishment is organized orunorganized

What if its an organized establishment? (Neg-GM-VA)

1. Employer and union must negotiate 2. Any dispute must be resolved through

grievance machinery in CBA

3. If unsolved, through voluntary arbitration What if its an unorganized establishment? (Neg-

Labor-NLRC)

1. Employer and union must endeavor tocorrect it

2. Any dispute must be resolved throughLabor Arbiter (R.A. 6727 says NCMB)


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3. In unsolved after 10 days of conciliation,refer to NLRC

o Must the new difference be the same as before? No, not to the last peso. Restoration of appreciable

differential is sufficient.

o Is any issue involving wage distortion a valid ground forstrike or lockout?

No. Check the enumeration its not there.o What is the just and equitable formula forwarded by the

SC in Metrobank?

(minimum wage / actual salary) * (prescribedincrease) = distortion adjustment

o Is there inter-region wage distortion? No. Just intra-region. The wage-fixing rates are fixed

per region, and comparison must be within these

regions and not across regions.

oWhat if the salary distortion was created due to employer-initiated salary restructuring?

There is no legal duty to rectify the distortion becausethe legal duty only arises from distortions brought

about government wage orders.

o What are the prohibitions pertinent to wage orders? 1. No TROs or injunctions are allowed for proceedings

before the NWPC or RTWPBs.

2. Wage orders must respect the statutory minimumwage set by Congress.

o Who are not covered by wage orders? 1. Household/domestic workers, and those in

personal service

2. Workers in retail/service establishments employingnot more than 10 workers, when exempted from

compliance for a certain period fixed by

commission/boards

3. Workers in new business enterprises, within 2-3years from start of operations, when exempted and:

Outside NCR Or in EPZs

o How often can there be a wage order? Once every 12 months Except when there is a Congressional law

o What are factors considered in wage orders? (dontmemorize but understand and familiarize)

1. Standards of living 2. Needs of workers/families 3. Wage adjustment vis--vis consumer price index 4. Prevailing wage levels 5. Effects on employment family income 6. Cost of living and changes 7. Fair return of capital investment and employers

capacity

8. Need to induce investment in rural areas 9. Equitable distribution of income 10. Demand for living wages

REST DAY

When does the right to rest day accrue?o For every six consecutive normal work days

When is the rest day set?o Depending on the CBA or subject to RRso What if the employee has preference based on religion?

It is respected, but he must inform the employer atleast 1 week before the day preferred

What if it might cause prejudice to business? Resort to other remedial measures. If there

are none, must schedule the preferred restday on that chosen day at least twice a

month.

When may an employee be required to work on a rest day?o 1. Actual or impending emergencies caused by disaster or

calamity, to prevent loss of life/property

o 2. Urgent work on machinery, equipment, or installation toavoid serious loss

o 3. Abnormal pressure of work due to special circumstances And there are no other measures


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o 4. Prevent loss or damage to perishableso 5. Nature of work requires continuous operations and stoppage

of work may result in irreparable injury or loess to employer

o 6. Analogous circumstanceso 7. Favorable weather or environmental conditions, when

performance is dependent on sucho (N.B. If you notice, this is the same as the Mandatory OT

enumeration, except for abnormal pressure of work due to

special circumstances)

What is the rate of rest-day compensation? o Regular wage plus 30% (premium pay)o What if because of the nature of the employees job, there

are no regular workdays and no regular rest days can be

scheduled?

The extra 30% applies to Sunday work What is the rate for work on a specialholiday?

oRegular wage plus 30%

o What if it is also his scheduled rest day? Regular wage plus 50% N.B. if he works OT, then its plus 30% of 150%

What are the special holidays?o 1. All Saints Day (Nov 1)o 2. Last day of the year (Dec 31)o 3. Ninoy Aquino day (Aug 21)

What if the employee does not work on a special holiday? o No pay

What is the implication when a day is declared as a specialworkingholiday?

o Then no premium pay is given. An employee just earns 100%if he works.

HOLIDAYS

Which employers are not required to pay this holiday pay? o 1. Government and GOCC employeeso 2. Domestic helperso 3. Those in personal service of anothero 4. Managerial employees

o 5. Field personnelo 6. Those paid based on contract, commission, or for end-result

regardless of time spent working

o 7. Those in retail and service establishments employing lessthan 10 workers

o (N.B. This is the same as NSD enumeration, and the same ashours of work exemption + 10 workers-rule)

Are monthly-paid employees excluded from holiday pay?o No. They are included. The IRR provision establishing this is

void.

For hourly-paid teachers, will the calling off of class or declarationof special public holiday deprive them of income?

o No. They should receive what they would have been paid.o What about when extensions are given?

Then they are paid their hourly rates. Are private school teachers entitled to holiday pay?

oYes if the holiday falls during Christmas vacation

o No if the holiday falls during semestral breaks What about employees paid by results?

o Paid average daily earnings for 7 days preceding holidayo But must not be less than minimum wage

What about seasonal workers?o Not paid holiday pay during off-season

Compensation:

Holiday and EE does not work 100% pay

Holiday and EE works 200% pay

Double-holiday (ex. MaundyThursday and Araw ng Kagitingan)

200% if EE rests; 300% if EE works

Holiday falls on Sunday 100% if EE rests; 200% if EE works(no special rule)

Holiday falls on rest day 100% if EE rests; 230% if EE works;

N.B. +30% of 230% if EE works OT

What is the rule in case of absences?o Employee on LOA with pay

entitled to benefit


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o Employee on LOA without pay on the day immediatelypreceding a regular holiday

not entitled to holiday pay unless he works on suchregular holiday

o If immediately preceding day to a holiday is a non-working dayor is the scheduled rest day

entitled to benefit only if he worked on the dayimmediately preceding the rest day or non-working

day

What if there are successive regular holidays, like MaundyThursday and Good Friday?

o To be entitled to two successive holidays, employee must: 1. Be present on the day immediately preceding the

first holiday

2. Or be on paid leaveo If he absents himself on the day immediately preceding

the first holiday, what is the consequence? He may not be paid for the two holidays What is the remedy?

He can go to work on the first holiday. What is the rule if there is temporary shutdown or cessation of

work?

o If regular holiday falls in period of temporary shutdown (ex.inventory, repair, etc.)

Entitled to benefito If it falls in period where operations cease due to business

reverses, as authorize by Sec. of Labor

No holiday pay What is an ECOLA? Is the employee entitled to it during a legal

holiday?

o Emergency Cost of Living Allowance, which is not part of theregular wage

o Yes, whether or not the employee works on a legal holiday, heis entitled to ECOLA

What are the legal holidays?o New Yearo Maundy Thursday

o Good Fridayo Araw ng Kagitingan (April 9)o Labor Day (May 1)o Independence Day (June 12)o National Heroes Day (Last Sunday of August)o Bonifacio day (November 30)o Eidul Fitro Eidul Adhao Christmas Dayo Rizal Day (December 30)

What is the holiday economics rule?o For the following seven holidays, the holiday is moved to the

nearest Monday

Araw ng Kagitingan Labor Day Independence Day

National Heroes Day (becomes Last Monday ofAugust)

Bonifacio Day Rizal Day Ninoy Aquino Day Special holiday

LEAVES

What is the right of Service Incentive Leave?o Every employee who has rendered 1 year of service is entitled

to SIL of 5 days

o To whom will SIL not apply? 0. USUAL (Government/GOCCs, domestic workers,

those in personal service of another, managerial, field,

contractual/commission/end-result)

1. Those already enjoying this benefit 2. Those with Vacation Leave (VL) with pay of at least

5 days

3. Those in establishments with less than 10employees


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4. Establishments exempt by the Sec. of Labor, afterconsidering viability or financial condition of the

establishment

o (N.B. There are actually just three categories: a) those whoalready grant it, and b) those who cant grant it, c) usual)

What is the prohibition as to benefits granted in excess of what isprovided herein?

o It cannot be the subject of arbitration or any court/admin action Is VL or Sick Leave required to be given?

o No, it is not required by law. It is dependent on employerpolicy and CBAs.

o These are voluntary benefits. What are required by law (mandatory benefits)?

o 1. SILo 2. Paternity Leave (RA 8187)o 3. Maternity Leave (SSS Law)o

4. Solo Parent Leave (RA 8972)o 5. Battered Woman Leave (RA 9262)o Does the less than ten employees rule apply to

Paternity or Maternity Leave?

No. It only applies to SIL. Why?

Kawawa naman sila, nanganak na nga,papapasukin mo pa. It doesnt matter how

many employees are there.

What happens to unused SIL?o Converted to cash.

Maternity Leave:o Who is covered?

Female who has paid at least 3 monthly contributionsin the 12-month period immediately preceding the

semester of her childbirthor miscarriage

o What does she receive? 100% of average daily salary for 60 days 100% of average daily salary for 78 days, if caesarian

o What are the conditions?

The employee must notify the employer of herpregnancy and this information is transmitted to the

SSS

Full payment is advanced by the employer within 30days from filing the maternity leave application

o Can the woman recover sickness benefits concurrent withmaternity leave?

No.o When does the SSS reimburse the employer?

Upon satisfactory proof that the employer hasadvanced to the employee the benefits required

o How many times can maternity leave benefits be availedof?

First four deliveries or miscarriageso What is the consequence if the employer fails to turnover

to the SSS the employees contributions, or fails to inform

the SSS of her pregnancy? Employer pays damages to the SSS equal to what the

employee would have been entitled to

o Is the identity of the father material? No, it doesnt matter who the father is

Paternity Leave:o What is given?

Seven days of paternity leave with full pay to marriedmale employees in the private/public sectors

Are these 7 working days or 7 calendar days? No. 7 calendar days.

o What are the conditions to entitlement? 1. Married male employee and is employed when the

child is born

2. Cohabiting with his legitimate spouse when shegives birth or suffers miscarriage

3. Applied for paternity leave according to rules 4. Wife gave birth or suffered miscarriage

Is abortion included?o No, not anymore.

o For how many deliveries is paternity leave valid?


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First 4 deliveries What is Solo Parent Leave?

o A solo parent employee who has rendered service for at leastone year shall be given parental leave of not more than 7

working days

o What does a solo parent cover? Women who gave birth as a result of rape Widow or widower Spouse separated legally or de facto for at least one

year

o What must the solo parent prove? He or she is left alone with responsibility of

parenthood

o What must he or she show? Solo parent identification card issued by a

representative of the DSWD

What is the Battered Woman Leave (BWL) under RA 9262?

o A victim of physical, sexual, or psychological violence canapply for the issuance of a protection order. In addition to

other reliefs, if she is an employee, she is entitled to a paid

leave of up to 10 days in addition to other leaves.

o Is it extendible? Yes, when necessity arises as specified in the

protection order.

o What is a pre-requisite? Must submit certification from punong brgy, kagawad,

prosecutor, or clerk of court that an action under RA

9262 has been filed and is pending

o Is use of the 10 day leave mandatory? No. Its up to the woman employee. It can be used for days where she attends to medical

and legal concerns.

Are unused leave days convertible to cash orcumulative?

No.o What if the employer refuses to implement BWL?

Liable under RA 9262.

o How is recovery of BWL benefits enforceable? Under Art. 129, with the Regional Director (same

provision as simple money claims)

SERVICE CHARGES

What is the rate of distribution for service charges collected byestablishments?

o 85% to all covered employees distributed equally amongemployees, regardless of position or rank

How often is distribution? Once or twice a month

o 15% to management What is the integration rule?

o If service charge is abolished, the share of covered employeesis considered integrated in their wages

What is covered by the 15% management share?o To answer for losses and breakages, or it can be distribution to

managers at managements prerogative

13TH

MONTH PAY

What is the rule on 13 th month pay?o It is required by law. It is not part of the basic wage, but it is

based on that wage.

What is the value of the 13 th month pay?o It is 1/12 of total salary earned within a calendar year.

Are other bonuses included in the base rate?

No. Just the regular wage. When is it paid?

Not later than December 24 What is not part of the basic salary base?

1. Cost of living allowances 2. Profit-shares 3. All allowances and monetary benefits not

integrated in the basic salary

Who is entitled to 13th month pay?


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o All rank and file employees regardless of designation andstatus as long as they worked at least one month in that year

o And irrespective of method of payment (even piece-rateemployees)

o What about managerial employees? Excluded by law, but can be included by stipulation

What if an employee is terminated or has resigned before paymentof 13

thmonth pay?

o Entitled to 1/12 of what he has earned anyway Which employers are exempted?

o 1. Government/GOCCs (usual)o 2. Employers of household helperso 3. Employers of those under the personal service of anothero 4. Employers of those paid on commission, boundary, or end-

result basis

Except: piece-rate workers, who are covered What is the rule on commissions?

If the commissions may properly be

considered as part of the basic salary, then

its covered by 13th

month pay

If its not part of the basic salary, itsexcluded

o 5. Those already paying 13th month pay or its equivalent Check intent of the bonus to see if it is credited as in

lieu of the 13th

month pay or if its additional

o N.B. This is almost the usual enumeration + those who alreadyget an equivalent. Managers may or may not be given (see

above).

o EXCEPT field workers are supposed to be given 13 th monthpay, because this provision is not re: hours of work.

What if someone has multiple employers?o Can get 13th month pay from all private employers, regardless

of total earnings

Summary of exemptions:

Hours ofwork

NSD Wages Holidaypay

SIL 13th

MP

Govt,

GOCCs

Govt,

GOCCs

Farm

tenancy/leasehold

Govt,

GOCCs

Govt,

GOCCs

Govt,

GOCCs

Managers Managers Cottage

industries

Managers Managers Managers

(may stillbe given)

Fieldpersonnel

Fieldpersonnel

BMBE Fieldpersonnel

Fieldpersonnel

DH DH DH DH DH DH

Supportedfamily

members

Supportedfamily

members

Supportedfamily

members

Supportedfamily

members

Supportedfamily

members

Personal

service

Personal

service

Personal

service

Personal

service

Personal

service

Paid byresults

Paid byresults

Paid byresults

Paid byresults

Paid byresults

Only up to5 EEs

Only up to10 EEs

Only up to10 EEs

Exemptedby LaborSec

Alreadyhave SIL

Alreadyhave 13

th

MP

With paidVL of at

least 5

days

Compulsory OT work Compulsory rest day work

War or emergency War or emergencyPrevent loss or imminent danger Prevent loss or imminent danger

Urgent work on equipment Urgent work on equipment

Prevent loss or damage to

perishables

Prevent loss or damage to

perishables

Completion of work to avoidprejudice

Completion of work to avoidprejudice

Favorable weather conditions Favorable weather conditions

Abnormal pressure to work due tospecial circumstances


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WOMEN WORKERS

What is the non-discrimination rule?o Cannot discriminate against a woman as to terms and

conditions of employment solely due to her sex

o What are the reliefs available? Criminal action Civil action for money claims, with damages, and

other affirmative reliefs

Are these mutually exclusive? No. They proceed independently of each

other.

Are stipulations against marriage allowed?o No. An employee cannot be hired with the condition that she

does not get married, or be terminated due to marriage

What are the prohibited acts?o 1. Deny a woman employee benefits here or discharge her to

prevent her from enjoying the benefits

o 2. Discharge a woman due to pregnancy, or while on maternityleave

o 3. Discharge or refuse to re-admit a woman after leave What is the special rule on classification?

o Woman who is permitted or suffered to work, with or withoutcompensation in night clubs, massage clinics, bars (and similar

establishments), if under effective control/supervision of the

employer considered an employee of such establishment

o For what purposes? Labor and social legislation

Who may be a victim of sexual harassment?o Either a male or female

When is sexual harassment committed?o When a person demands, requests, or requires sexual favor

from another

Must it be put in an oral or written statement? No, it can be by inference

o Who may commit sexual harassment?

Anyone with authority, influence, or moral ascendancyover the person harassed

o Where may it happen? In work, training, or education environment

o What if the person harassed refused the demand, request,or requirement?

It does not matter. Its still sexual harassment.MINOR WORKERS

Where can minors from 15 to below 18 be hired?o For any employment, as long as it is non hazardous. A person

has to be at least 18 years old to perform hazardous work

o Give examples of hazardous workplaces: Exposed to contaminants Construction, logging, fire-fighting, mining,

mechanized farming, deep sea fishing, etc.

Handling explosives or pyrotechnics Using heavy equipment or machinery Using power tools

o What are the allowed working hours? Not more than 40 hours a week, no more than 8 hours

a day

No work from 10 pm 6 am N.B. in other words, no OT, no night shift

Can children below 15 be employed?o No, except under very strict conditionso What are these exceptions?

1. The child works directly under the soleresponsibility of his/her parents/guardian and where

only members of the family are employed, and as long

as:

The childs safety, life, health, or morals arenot endangered

Does not impair childs normal development


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Parent or guardian gives primary/secondaryeducation to the child

2. Child actors or talents, as long as: Employment contract is concluded by

parents or guardian with express agreement

of child, and if possible, DOLE approval The childs safety, morals, health are not

endangered

Employer takes measures to prevent childexploitation or discrimination taking into

account remuneration, duration, and working

time

Implement continuing skills and trainingacquisition program for the child

o What is required for these two situations? The employer must secure a work permit from DOLE

o What are the allowed working hours? No more than 20 hours a week, no more than 4 hours

a day

No work from 8 pm 6 am What does RA 7323 provide?

o Employers can hire at least 50 students during vacation periodand pay those students only 60% of their wages, and 40%

through education vouchers to be paid by government

o But the wages must meet the legal minimum What are the prohibitions on employment of children in certain

advertisements?

o Cannot be employed as model in advertisements for alcoholicbeverages, tobacco, gambling, violence, or pornography

What are the worst forms of child labor?o 1. Slaveryo 2. Prostitutiono 3. Production and trafficking of dangerous drugs and prohibited

substances

o 4. Work which by its nature or circumstances in which it iscarried is hazardous or harmful to health, safety, morals of

children

EMPLOYMENT OF HOUSE HELPERS

What are house helpers?o Those providing services in the employers home which is

usually necessary and desirable for the maintenance and

enjoyment thereof

Includes ministering personal comfort andconvenience of the members of the household

Including family driverso Is a driver, laundrywoman, houseboy, etc. who works in

company staff-houses a house helper?

No. He or she is an industrial worker and must bepaid the industrial rate

o What is the criterion? Personal comfort and enjoyment of the family of the

employer in the home of said employer

What benefits are accorded house helpers?o 1. Minimum wageo 2. Cannot be assigned to work in commercial, industrial, or

agricultural enterprise at a wage lower than what is prescribed

o 3. What if the house helper is less than 18 years old? If the house helper is less than 18 years old, the

employer must afford opportunity for at least

elementary education

Cost of education is part of the helpers compensationo 4. Must be treated in just and humane manner. No physical

violence must be used.

o 5. Free lodging, board, and medical attendanceo 6. Upon termination, given a written statement of the nature

and duration of the service and his/her efficiency as house

helper (employment certification)

o 7. Contract does not exceed 2 years (renewable)o 8. Funeral expenses paid by employer if house helper has no

relatives with sufficient means in the place

What are the hours of work allowed?o Not to work for more than 10 hours a day


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If the house helper agrees to work OT and there isadditional compensation, it is permissible

What is the vacation privilege?o Right to 4 days vacation each month with pay. Failure to use

this does not allow accumulation the helper can just get

monetary value. What if the period of household service is fixed?

o Cannot be terminated before end of the period without justcause

o What if a house helper is unjustly dismissed? Paid compensation already earned plus that of 15

days indemnity

o What if a house helper leaves without justifiable reason? Forfeits unpaid salary not exceeding 15 days

What if the period of household service is not fixed?o He must give 5 days notice before intended date of termination

EMPLOYMENT OF HOME WORKERS

What is a homeworker?o Any person who performs industrial homework for an

employer, contractor, or sub-contractor

Under what circumstances are persons considered employers ofhomeworkers?

o 1. Delivers or causes to be delivered any goods to beprocessed or fabricated in or about a home and then returned

or disposed of or distributed according to his directions

o 2. Sells goods to be processed or fabricated in or about ahome and then re-buys them after such processing

Who can be deemed an employer of homeworkers?o Any person, natural or artificialo For his account or benefit, or on behalf of a non-residento Directly or indirectly

Can industrial home workers form a labor organization?o Yes.

What are the conditions before there can be deductions from ahomeworkers income, due to loss, damage, or destruction to

materials?

o 1. Homeworker is clearly shown to be responsible for the losso 2. Employee is given reasonable opportunity to explaino 3. Amount of deduction is fair and reasonable and not exceed

loss/damage

o 4. Deduction is made such that it does not exceed 20% of theearnings in a week

o N.B. this is the same rule for breakages for regular employees What is the nature of the liability of the employer vis--vis the

contractor and the latters homeworkers?

o Same as in an independent contracting arrangement. Theprovisions for homeworkers must be inserted in the contract.

o The employer is held liable when there is failure to pay wagesby the contractor.

Prohibitions for homework:o 1. Explosives, fireworks, similar articleso 2. Drugs and poisonso 3. Articles where processing involves exposure to toxic

substances

APPRENTICES AND LEARNERS

What is an apprenticeable occupation?o Any trade, form of employment, or occupation which requires

more than 3 months of practical training on the job

supplemented by theoretical instruction

o Involving a contract between the apprentice and employer, onan approved apprenticeable occupation by the TESDA

Who may employ apprentices?o Only employers in highly technical industries AND approved by

the DOLE

Who can qualify as an apprentice?o 1. At least 14 years of ageo 2. With vocational aptitude and capacity for appropriate testso 3. And possesses the ability to comprehend and follow

written/oral instructions

What is the maximum period of apprenticeship?o 6 months

Can there be payment of less than the minimum wage?


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o Yes, but not below 75% and it must be pursuant to anapproved apprenticeship program approved by the DOLE

What if there is no prior approval of the DOLE? o The apprentice is in fact a regular employee.

What are the possible venues of the program?o

1. Entirely within the sponsoring firmo 2. In a DOLE training facilityo 3. In a training facility, and then in the sponsoring firm

What is the remedy for violation of apprenticeship agreement?o Complaint filed with DOLEo Appeal within 5 days from receipt of decision to Sec. of Labor

What the conditions for tax deductibility of training costs?o 1. The program must be approved by the DOLEo 2. The deduction must not exceed 10% of direct labor wageo 3. The apprentices are paid at least the minimum wageo How much can be deducted?

of value of labor training expenses When can apprentices be hired without compensation?

o When training on the job is required by the school orcurriculum, or as a requisite for graduation/board examination

Are students who work for the school for free education deemedemployees?

o No, as long as they are given real opportunities to finish theirchosen courses

o What if the student causes damage to a third person in thecourse of these duties?

The school will be deemed an employer. The school is only not deemed an employer as

regards labor regulations, rest periods, etc.

What are learners?o Persons hired as trainees in semi-skilled and other industrial

occupations which are non-apprenticeable

o And which may be learned through practical training on the jobin a relatively short period of time, not exceeding 3 months

When can learners be hired?o 1. When no experienced workers are available

o 2. Necessary to prevent curtailment of employmentopportunities

o 3. Does not create unfair competition in terms of labor costs orstandards

Contents of learnership agreement?o

1. Names and addresses of learnerso 2. Duration of learnership period (at most, 3 months)o 3. Wages and salaries of learners, which must be at least 75%

of minimum wage

What if the learners are in piecework? Must be paid in full for the work done

o 4. Commitment to employ the learners if they want as regularemployees after the period

o When are learners automatically deemed regularemployees?

When they have worked for at least 2 months andthen training is terminated by the employer before the

end of the stipulated period, through no fault of the

learner

Contrast:Apprenticeship Learnership

Highly skilled or technical jobs Semi-skilled job or industry

Not learnable in less than 3 months Learnable in less than 3 months

Approved by DOLE No such requirement

No commitment to hire after

termination of period (no certainty itwill be learned)

Commitment to hire after termination

of period

HANDICAPPED WORKERS

Who are handicapped workers under the LC?o Those whose earning capacity is impaired by age or

physical/mental deficiency or injury, disease, or illness

o What if the disability is not related to the work performed? Then the employee will not be considered a

handicapped worker


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Who are handicapped persons under RA 7277 (Magna Carta forDisabled Persons)?

o Those suffering from restriction or different abilities as a resultof mental, physical, or sensory impairment, to perform an

activity in the manner or within the range considered normal for

a human being What is the rule on non-discrimination?

o No disabled person can be denied access to opportunities foremployment

o If qualified, must be hired under same terms, privileges,benefits, etc.

What are the reserved positions for handicapped workers? o 5% of all casual, emergency, and contractual positions in

DSWD, DOH, Dep Ed, and other government agencies

engaged in social development

o What if suitable employment for handicapped personscannot be found through open employment?

State endeavors to provide sheltered employmento Can handicapped workers be hired as learners or

apprentices?

Yes, if their handicap is not such as to effectivelyimpede performance in the job for which they are

hired

What are the incentives given to employers of handicappedpersons?

o 1. Tax deduction from employers gross income of up to 25% ofamount paid as salaries to handicapped workers

Must present proof of employment And DOLE certification of workers disability

o 2.Tax deduction from employers gross income of up to 50% ofdirect costs for improvement of facilities for handicapped

workers

But does not include improvements under BP 344(Accessibility Law)

TERMINATION OF EMPLOYMENT

EMPLOYER-EMPLOYEE RELATIONSHIP

Why is it important to determine EER?o It determines the legal relationship between the parties, and

their rights and obligations.

How do you determine whether there is an EER?o Four-fold test

1. Selection and hiring 2. Payment of wages 3. Power to dismiss the employee 4. Control over how the employee performs his

functions

o Does it matter what kind of system for payment of wagesis present (e.g. by compensation)?

No. EER is not determined by basis of employeescompensation, because wage is paid no matter how

designated.

o What is the most important? Control (#4)

o How do you determine when there is control? Determine how the employee performs the functions

(manner and means used), not just the end product

There is no control under the EER if the employer justsays the end product or goal

o What about employees working outside the facilities, arethey still under control of the employer?

They still can be under the control of the employer.Ex. taxi cab drivers.

Distinguish giving details on the work, supervision on the mannerof doing the work:

o Instructions, no matter how detailed, may not actually indicatecontrol. If the details pertain to the product itself, then you are

not controlling the work. (Ex. you say that you want a barong


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that has gold buttons, long sleeves, made of a certain tela,

etc.)

o If the details pertain to the work itself, there is control. o N.B. So reporting about collections, or progress of the chair

being constructed these reports are really just about the end

product, and do not indicate control. So even reports do notalways indicate control.

o What if the alleged employee works more or less at hisown pleasure and is not subject to definite

hours/conditions of work, and is compensated for the end

result only?

No EER.o X was an insurance agent required to solicit business

exclusively for Company Y. Is this control?

It may seem like it, but its not. In this case, theexclusivity clause stems from an Insurance Memo

Circular, to protect the public. There was no intention

by Corp Y to exercise control over the method and

manner by which X sells insurance.

Should the power be exercised?o No, need not be. Just as long as its available.o How can you prove it if its not exercised?

If there is a written agreement, you can point tocertain provisions.

o What if there is no written contract or any proof of theinstructions given?

Usually you can prove it by the fact that he is withinthe company premises. That his presence is required

by the company, and he is given an ID, are strong

indicators. Working in a place controlled by the

employer is a good indicator.

In the above examples, there are only two parties. But if there aremultiple parties involved and there are multiple suspected

employers, how do you determine who the employer is?

o Control is the strongest factor. For instance, A hires, B fires, Cpays, and D controls. D is the employer.

What is the subordinate test?

o Economic Relations Test existing economic conditionsbetween the parties are used to determine whether EER exists:

1. Payment of pag-ibig contributions 2. Payment or remittance of contributions to the State

Insurance Fund

3. Deduction of withholding tax

4. Deduction or remittance of SSS contributionso W/N the employee is dependent on the alleged employer for

his continued employment in that line of business

What is the value of ID cards?o Its not just a security measure but it usually mainly identifies

the holder as a bona fide employee of the corporation.

What are the special cases?o 1. No EER between students and their school if there is written

agreement that the student works in exchange for free

education and the student is given real opportunity to finish the

course

o 2. There is EER between resident physicians and traininghospital UNLESS there is training agreement between them

and it is duly accredited by the government

PROBATIONARY EMPLOYMENT

Do all regular employees have to start as probationaryemployees?

o No. There is only probationary employment when there is anagreement for probationary employment.

o But for probationary employees, after the lapse of the period,he/she becomes a regular employee.

What should the agreement contain?o 1. Apprise employee of the nature of employmento 2. Inform employee of standards to be met to become regular

How long should the probationary period be?o Six months. It cannot go beyond the six month period. It is

non-extendible.

o What are the exceptions? 1. Covered by an apprenticeship program stipulating

longer period


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2. Voluntary agreement of parties (esp. when thenature of work requires longer period) (Mariwasa v.

Leogardo)

3. Employer gives employee a second chance to passthe standards test

What will make the probationary employment invalid?

o If the employer did not give reasonable standards for theemployee to meet within that period.

o The standards have to be given at the start of the employment. o What is the legal effect of this?

The employee becomes regular. Before you reach the end of the probationary period, can you still

terminate the employee on the grounds for which a regular

employee may be terminated?

o Yes. When will the employee become regular?

o Evaluate within the period.o If there is no evaluation and he is hired beyond the period, then

he becomes a regular employee.

You start a probationary work agreement, and the six monthperiod ended. The employee continues working. There is no

evaluation yet. What is the legal implication?

o He becomes a regular employee.o At what point?

As soon as you go beyond the six month period. How do you count six months?

o There are conflicting decisions, but Atty. MM prefers the sameday from the sixth month from when you started employment

(Jan. 3 July 3)

o Although there is another case that says 180 days. Can a person who has been promoted be probationary again?

o No. Only probationary as to the position, but you can never beprobationary as to employment in general again.

What are the requirements for private school teachers to acquirepermanent employment?

o 1. The teacher is full-timeo 2. Must have rendered three consecutive years of service

o 3. The service must be satisfactoryKINDS OF EMPLOYMENT

Regular employees

When is an employee regular?o When he performs tasks that are usually necessary and

desirable to the business.

How does usually necessary and desirable here compare todirectly related in contracting arrangements?

o Necessary and desirable here applies to class ofemployment, and directly related in contracting only relates to

whether there is an employer-employee relationship.

A worker who performs work usually necessary and desirable tothe company becomes an employee of the company. T/F?

o False. The conclusion is off-tangent.o You use the necessity and desirability test to determine what

class of employee he is, and not whether or not he is an

employee.

o To determine employer-employee relationship, you apply thefour-fold test.

There is a company with security guard A, and security guard B.Can it be that A is a regular employee, and B is not because he

was hired by a contractor?

o Yes, this is legally possible.o But isnt the nature of the work of the employee the

determinant?

Yes. But you determine the nature of his work inrelation to the contractor.

How do you determine if a particular work is usually necessaryand desirable, hence leading to regular employment?

o Look at the nature of the business of the employero What if an employee is tasked to perform a job for at least

one year already?

Performance of a job for at least a year evidencethat the job is necessity and indispensable for

business


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How can a regular employee be terminated?o For just or authorized causes only

Casual employee

Who is a casual employee?o One doing work not usually necessary or desirable to the

employer, and is not project nor seasonal

When do they become regular employees?o After one year of service, continuous or broken.o He becomes regular as to the activity for which he is employed

and is regular as long as the activity exists

o When does one year period vest? NOT your one year anniversary. It must be cumulative period of service of one year.

Fixed term employment

What are the requisites?o 1. They should have agreed upon a time frame for when work

must be done

How is this different from project? Fixed term is time bound, project is task

bound. Fixed term does not care if the

project or job is done.

o 2. The agreement was voluntarily entered into by parties Consider level of parity

o 3. Employment scheme is not designed to circumvent thelaw/Labor Code

What if the job is usually necessary and desirable to the businessof the employer?

o The employee is deemed regular If all the employees are fixed-term, it is proof of illegality, because the

employer is seemingly circumventing the law.

Is there a conversion?o If you work beyond this period, you become regular

Rememberthe general rule: you are regular if you are not covered by aspecial agreement. If you are hired but not placed under a special

category, you are regular.

Seasonal employees

When will seasonal employees become regular?o After repeated rehiring.

What if after harvesting season, they still work FOR the employerbut doing other seasonal tasks (ex. harvesting then the next

season, drying)?

o They become regular.o If you are employed throughout the year, doing different tasks,

although all are seasonal, you are regular.

What is the status of seasonal workers who are called to workfrom time to time and are not made to work during off-season?

o They are not separated from service. They are considered onleave until re-employed. They are seasonal workers.

o But if they have repeatedly done that job for years, theybecome regular.

Project employees

What are project employees?o They are hired for a specific undertaking or project.o His employment ends after the project ends.o They cannot be terminated without just cause before the

project ends.

o What is the day certain rule? It ends on a certain date, but not an exact date just

upon completion of project

If there is a construction project ongoing, can we assume theconstruction workers are project employees?

o No, it doesnt follow. What is an example of a project within a company that is different

from its main line of business?

o Mango Orchard owner hiring workers to build a water pipelinefor irrigation.


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When can project employees become regular employees?o Working beyond the projecto Repeated rehiring, for the same task or tasks that are

necessary for the business

o Is a second project a repeated rehiring?

No, its the first rehiring. A third project will be the firstinstance of repeated rehiring.

Is the date material?o Not always, because it can also be another determinant, such

as the completion of the project, even if the date is not

determinable.

o What if there is no such given standard? Considered a regular employee.

Is a long gap between projects material to determine whether youcan be converted to a regular employee?

o No, lapse of time is immaterial. As long as there is repeatedrehiring.

o What if the period is more than one year? Again, time is immaterial.

CONTRACTING ARRANGEMENT

Whats a contracting arrangement?o There are three parties: the principal, the contractor, and the

employee

o There are two contracts between the principal and contractor,and the contractor and the employee

What is the relationship between the principal and the worker?o The principal is the indirect employer.o Principle why this is so: the work is always for the principal. It

redounds to his benefit.

N.B. This does not refer to all situations where there isa complicated process/production line, where

ultimately, what is produced by employer goes to the

principal. For instance, some outsourcing

transactions are not contracting arrangements. Just

take note of this.

The principal has no liability to the employee if you have alegitimate contracting arrangement. T/F?

o False. The principal is solidarily liable for failure to pay wages. What are the rights of the parties in a legitimate contracting

arrangement?

oThe principal is the indirect employer.

o Contractor is the direct employer.o Employee is, well, the employee.

In an illegitimate contracting relationship?o Principal is the direct employero Contractor is the agent of the principalo Employee is still the employee

How different are the responsibilities of the principal is the tworelationships?

o Legitimate principal is solidarily responsible if the employer-contractor cannot pay the wages due

o Illegitimate principal is principally liable for the wages When is there solidary liability?

o In EITHER contractual arrangement.o But in the illegitimate contractual arrangement, the solidary

liability is not as important, because they are targeting the

principal usually. But it is wrong to say that the contractor is

not solidarily liable. It is solidarily liable; otherwise it will be in a

better position than the legitimate contractor. But for all intents

and purposes they just go to the principal anyway.

What is the difference though?o In legitimate labor contracting, the principal is only liable if the

contractor fails to pay wages.

NOTE: Under Art. 106, the principal is ONLY liable forfailure to pay wages by the contractor for work

performed, but the principal is NOT their employer for

any other purpose. Nothing else. Not even back-

wages stemming from illegal termination.

Note: Under Art. 109, solidary liability is establishedbetween principal and contractor. In 109, there is no

difference between legitimate and illegitimate

contractors, as to solidary liability.


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o In illegitimate labor contracting, the principal is employer evenbeyond this single circumstance. It is, for all intents and

purposes, just like any other employer. It is liable not just for

payment but for responsibilities of the employer.

o If the illegitimate contractor already paid the wages, is theprincipal still liable?

Not anymore, because the principal/employers agenthas paid.

What if there a violation of the Labor Code?o For legitimate contracting arrangement, the principal is

generally not liable, unless it has participated or connived in

the violation. Remember, the principal is just liable under one

circumstance: payment of wages for work performed. Nothing

else.

o Take note of Rosewoodcase, which laid down that there mustbe finding of fault in the principal to hold it liable for violation of

Labor Code.

What is a legitimate contracting arrangement?o 1. The contractor has sufficient capital o 2. Employees do not perform work directly related to the

business of the principal

o 3. Contractor has control When does it become a labor-only contracting arrangement?

Does it have to violate all three grounds or just one?

o Do not be confused by the structure of the definition in Dept.Order 18-02. You go back to Art. 100. One disqualification

out of three is the more reasonable interpretation.

o For legitimate contractor you have to meet ALL requirements.o For illegitimate you miss just one, you are illegitimate.o N.B. In the old rules, there was a definition of an independent

contractor. We only have the definition of a labor-only

contractor.

When will you consider the principal the direct employer of theemployee?

o 1. Labor-only contracting arrangement 1. Principal actually controls the employees 2. Contractor does not have sufficient capital

3. Employees perform work directly related to theprincipals business

o 2. Commission of a prohibited activity What are these prohibited activities?

Those mentioned under DO 18

What in particular? 1. Contracting out a job when not done in

good faith resulting in termination of

regular employees and reduction of work

hours or affects bargaining unit

2. Contracting out a work with a cabo aperson or group which is disguised as a

labor organization but supplies workers to an

employer (with or without consideration)

3. Exploitative acts:o Requiring contractual employees

review labor

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